United States v. Mark Hertler, 776 F.3d 680

Background

Mark Hertler was convicted in 2005 on two child-pornography counts and sentenced to concurrent prison terms and concurrent 36-month terms of supervised release on each count.
After release, Hertler had two supervised-release revocations: first resulted in consecutive prison terms (9 months on Count 1, 3 months on Count 2) and 24 months supervised release concurrent on both counts; second revocation produced concurrent prison terms (15 months on Count 1, 1 month on Count 2) and a 20-month supervised-release term on Count 2 only.
The district court imposed a 20-month postrevocation supervised-release term on Count 2; Hertler appealed, arguing the court miscalculated the statutory maximum under 18 U.S.C. § 3583(h).
Central statutory text: § 3583(h) caps postrevocation supervised release at the statutory maximum for the offense minus “any term of imprisonment that was imposed upon revocation of supervised release.”
Hertler’s position: subtract all postrevocation imprisonment imposed across counts from Count 2’s 36-month statutory supervised-release maximum (yielding 9 months). Government/district court: subtract only postrevocation imprisonment imposed for that same count (yielding up to 32 months); the court imposed 20 months.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether "any term of imprisonment" in §3583(h) requires aggregating postrevocation prison time across different counts when computing the postrevocation supervised-release cap	Hertler: aggregate all postrevocation imprisonment across counts; reduce Count 2’s 36‑month cap by total postrevocation prison time (27 months)	Government: aggregation is count‑specific; reduce only by prison time imposed for the same underlying offense (Count 2)	Court: adopt count‑specific reading—subtract only postrevocation imprisonment tied to the same offense; affirm 20‑month term
Whether §3624(e)’s concurrent‑running rule causes supervised‑release terms to merge for §3583(h) calculations	Hertler: concurrency merges terms into a single unit, supporting aggregation across counts	Government: §3624(e) simply orders concurrent running; terms remain tied to individual counts	Court: reject merger; supervised‑release and postrevocation prison terms are count‑specific
Whether Knight and related precedent require cross‑count aggregation	Hertler: relies on Knight’s aggregation rule	Government: Knight involved a single offense and does not govern multiple counts	Court: Knight inapposite; its aggregation principle applies within a single offense only
Whether the rule of lenity mandates a construction favoring Hertler	Hertler: any ambiguity resolved in defendant’s favor	Government: statutory text and structure resolve ambiguity	Court: rule of lenity not invoked—no grievous ambiguity; adopt government’s interpretation

Key Cases Cited

United States v. Xinidakis, 598 F.3d 1213 (9th Cir.) (standard for de novo review of sentence legality)
United States v. Knight, 580 F.3d 933 (9th Cir. 2009) (aggregation of postrevocation imprisonment applies within a single offense)
United States v. Anderson, 519 F.3d 1021 (9th Cir. 2008) (applying aggregation across multiple revocations for same offense)
United States v. Zoran, 682 F.3d 1060 (8th Cir. 2012) (holding §3583(h) is count‑specific)
United States v. Oswalt, 771 F.3d 849 (5th Cir. 2014) (adopting Zoran’s count‑specific construction)
United States v. Merced, 263 F.3d 34 (2d Cir. 2001) (explaining need to aggregate postrevocation prison time for a single underlying offense to prevent endless cycles)
United States v. Maxwell, 285 F.3d 336 (4th Cir. 2002) (discussing aggregation tied to single underlying offense)
Albernaz v. United States, 450 U.S. 333 (1981) (rule of lenity overview)
Muscarello v. United States, 524 U.S. 125 (1998) (lenity applies only when ambiguity persists)
Moskal v. United States, 498 U.S. 103 (1990) (lenity and statutory scope)
Johnson v. United States, 529 U.S. 694 (2000) (postrevocation penalties relate to the original offense)